Abstract

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Substance or Illusion? The Dangers of Imposing a Standing Threshold

Individuals and interest groups challenging agency action or inaction often must allege not that they or their members have been or certainly will be harmed by the agency's approach, but instead that they face an increased risk of future harm. Courts struggle to analyze standing in these so-called "increased-risk" cases: Does the elevated risk constitute the necessary injury-in-fact, or must the likelihood of realized harm exceed a certain threshold before the case becomes cognizable? Several circuits take the former view, but the D.C. Circuit requires plaintiffs to establish that the alleged risk clears some indeterminate "sufficiency" or "substantiality" bar. The resulting circuit split positions the issue for Supreme Court review, yet the theoretical underpinnings and practical effects of the differing approaches remain largely unexamined.

Examination of those issues reveals little to recommend imposition of a substantiality-of-the-risk standing threshold. Neither moral nor jurisprudential theory supports the notion that small risks are inherently non-injurious, and careful analysis demonstrates that in practice, such a threshold consistently fails to identify increased-risk cases "worthy of review" (whatever one's definition of that term). Worse, a threshold comes at significant cost, insulating demonstrably injurious administrative policies from review, distracting courts from issues more relevant to reviewability, imposing a significant financial burden on citizen plaintiffs, and cloaking a substantive encroachment on Congress's power to recognize injuries to regulatory beneficiaries in the guise of a superficially objective statistical analysis.